142 Ind. 269 | Ind. | 1895
The appellant, as administratrix of the estate of Hortensius M. Lamport, sued the appellee, in a complaint of two paragraphs, for ten thousand dollars damages to the widow and children of said decedent, in causing his death through the alleged negligence of the appellee, as charged in the first paragraph, and through its willfulness, as charged in the second paragraph of the complaint.
At the close of the plaintiff’s evidence, the trial court instructed the jury to return a verdict for the defendant, which the jury accordingly did, upon which the appellee had judgment over appellant’s motion for a new trial.
Error is assigned here on the action of the circuit court in overruling that motion. It appears from the evidence, that the decedent and his brother-in-law, Henry Boles, while approaching the appellee’s station from the west, on one of the appellee’s side tracks, at the village of Osceola, in St. Joseph county, were both struck and killed by a backing gravel train, in the evening of March 25, 1892.
The appellee’s railroad runs east and west at said station and village, and the village, containing about 100 inhabitants, lies east of the station or passenger depot. The appellee has four tracks, all passing on the north side of the depot. Two side tracks and two main tracks; the north track and the south track are side tracks.
Boles lived on a farm a little north of west of the depot, 85 or 40 rods, the railroad running through his farm. His house was five or six rods north of the track. He had lived there 17 years.
People coming on foot from that direction to the depot were in the habit of walking on the appellee’s tracks,- for some distance west, up to the depot, and had been for years.
The gravel or work train came in on the north main
We may concede, without deciding, that the company by the foregoing facts in evidence is shown to have been guilty of negligence, and yet that is not enough to establish the appellee’s cause of action as alleged in the complaint. It is alleged in the first paragraph thereof, that, ‘ ‘ while in the exercise of ordinary care and without any fault on their part (they were) run against and struck by said flat-car and were thereby mortally injured and killed. ” The second paragraph charges a willful killing, but there is no claim or pretense by the appellant that there is a particle of evidence to prove such a killing. So that it is essential to prove, by some evidence, that the plaintiff’s intestate was exercising ordinary care and free from fault or negligence contributing to his injury and death.
In Mann v. Belt R. R., etc., Co., 128 Ind. 138, p. 142,
But it is contended that the company, by failure to provide a safe approach to its passenger depot, and by long acquiescence in the use of its tracks for such purpose by the public, authorized the public and the decedent to use the tracks of appellee, as the most convenient approach to its passenger depot. As was said in Pennsylvania Co. v. Meyers, Admx., supra : “But conceding, without deciding, that the appellee’s intestate had a right to go on the railroad track of appellant for the purposes named, that did not absolve him from the duty to exercise due care for his own safety. ”
The burden was on appellee to show that the deceased
It was said, in Hathaway v. Toledo, etc., R. W. Co., 46 Ind. 25, that “When a person crossing a railroad track is injured by a collision with a train, the fault is prima facie his own, and he must show affirmatively, that his fault or negligence did not contribute to the injury before he is entitled to recover for such injury.”
Aswassaid, in Cincinnati, etc., R. R. Co. v. Butler, 103 Ind., p. 31 (40): “Thispresumption is at least sufficient to require from him an explanation of his relation to the occurrence, and an affirmative showing that the circumstances were such, and his conduct such, that he was not in fault.”
Here the evidence shows that the appellant’s intestate could have both seen and heard the hacking train that collided with him and Boles and killed them, if he had attentively listened and looked. Under such circumstances, the law will assume that he actually saw what he could have seen if he had looked, and heard what he could have heard if he had listened. Cones, Admr., v. Cincinnati, etc., R. W. Co., 114 Ind. 328, at page 330.
Under such a state of the evidence, the trial court did not only not err in directing a verdict' for the defendant, but did the only thing which it could do without erring. Hence there was no error in overruling the motion for a new trial.
The judgment is affirmed.
Howard, J., took no part in this decision.